R v Ward

[2008] NZCA 328

IN THE COURT OF APPEAL OF NEW ZEALAND

CA369/2008
[2008] NZCA 328

THE QUEEN

v

DAVID JOHN WARD

Counsel:P J Davison QC for Applicant

T Epati for Crown

Judgment:28 August 2008 at 10.00 am

On the papers

JUDGMENT OF GLAZEBROOK J

THE APPLICATION FOR BAIL HAS BEEN GRANTED ON THE FOLLOWING CONDITIONS:

(a)That Mr Ward reside at Unit 658, Hyatt Residences, 6 Princes Street, Auckland;  and

(b)That where Mr Ward is required to travel overseas for business, notification be provided in writing to the Crown, 14 days in advance of departure indicating a fixed return date.

____________________________________________________________________

[1]       On 19 November 2007 Mr Ward was convicted of the following charges:

(a)one count of using a document with intent to defraud contrary to s 229A of the Crimes Act 1961;

(b)five counts of knowingly failing to provide information when required to do so with intent to evade the payment of tax contrary to s 143B of the Tax Administration Act 1994;  and

(c)two counts of knowingly providing misleading information with intent to evade the assessment/payment of tax contrary to s 143B of the Tax Administration Act 1994.

[2]       On 30 May 2008 Mr Ward was sentenced to 12 months home detention on each charge to be served concurrently, plus 300 hours community work and reparation.  Mr Ward appeals against these convictions and also against his sentence.

[3]       Pursuant to s 399(3) of the Crimes Act, the term of a sentence of home detention ceases to run on the day on which notice of appeal is given.  However, this Court in R v Edwards [2008] NZCA 205 at [3] – [4] and R v Bisschop [2008] NZCA 229 at [11] referred to the apparent inconsistency between s 399(3) of the Crimes Act and s 80ZB of the Sentencing Act 2002. The latter provides that time ceases to run on a sentence of home detention only when the offender is released on bail pending the appeal. This Court also expressed concern about offenders sentenced to home detention becoming free of any constraint simply on the filing of an appeal. The Court stated that it is desirable and appropriate for those who seek suspension of home detention sentences pending appeal to seek bail.

[4]       Although Mr Davison QC, on behalf of Mr Ward, submits that it is not clear whether or not this Court has jurisdiction to grant bail, an application for bail is made out of caution.  Mr Davison points out that s 70 of the Bail Act 2000 empowers this Court (and the Supreme Court) to grant bail to persons who are “in custody” and are appealing the conviction or sentence or both.  However, under s 80A(5) of the Sentencing Act, an offender sentenced to home detention is not in custody while serving the sentence.

[5]       France J in Edwards did not, however, regard s 80A(5) as an impediment to this Court’s jurisdiction to grant bail pending appeal to an offender sentenced to home detention.  I propose to follow that decision and assume there is jurisdiction to grant bail.  This is without prejudice to Mr Ward’s ability to argue at a later stage, if it ever becomes relevant, that there was no such jurisdiction.

[6]       Mr Davison submits that it is in the interests of justice to grant bail to Mr Ward pending appeal.  He submits that the criteria in s 14 of the Bail Act are met.  He says that the appeal has strength in particular due to the fresh evidence which will be sought to be introduced and which may have significant impact upon the safety of the convictions.  He further submits that, although Mr Ward is unlikely to serve the entire sentence before his appeal is heard and determined, the likely length of time that will pass before the appeal is heard will result in Mr Ward serving at least a third and possibly more of his sentence.  Finally, Mr Davison submits that Mr Ward has business interests which require him to travel overseas regularly and an inability to travel whilst awaiting determination of his appeal would cause significant damage to his business interests, which would be contrary to the interests of justice having regard to his pending appeal.

[7]       Mr Davison points out that Mr Ward had been on bail pending the hearing of the charges against him for a period of approximately two years.  During that time he travelled overseas regularly for business purposes and complied with all bail conditions to the full satisfaction of the prosecution.  After Mr Ward was convicted and before he was sentenced, he again undertook overseas travel and this was consented to by the prosecution.  It is submitted that Mr Ward has shown that he can be relied upon to comply with bail conditions and can be expected to conduct himself in the same manner whilst on bail pending appeal.

[8]       The Crown does not oppose the grant of bail.  As the grounds of appeal have yet to be finalised and the Crown has not seen any of the supposed fresh evidence, it was unable to respond to the submission that the substantive basis of the appeal against conviction is arguable.  However, in light of the issues that have arisen concerning the effect of an appeal on a sentence of home detention since it was made a stand-alone sentence from 1 October 2007, the Crown does not oppose the granting of bail pending determination of the conviction and sentence appeal.

[9]       The Crown seek two conditions, which are acceptable to Mr Ward:

(a)That Mr Ward reside at Unit 658, Hyatt Residences, 6 Princes Street, Auckland;  and

(b)That where Mr Ward is required to travel overseas for business, notification be provided in writing to the Crown, 14 days in advance of departure indicating a fixed return date.

[10]     I accept that it is appropriate to grant bail in this case.  Bail is accordingly granted on the above conditions.

[11]     Mr Ward has also, by memorandum of 11 August 2008, asked for an extension of time to file his submissions in relation to the appeal.  That application is not opposed by the Crown.  An extension is accordingly granted to 1pm on Friday 12 September 2008.

Solicitors:
Crown Law Office, Wellington